New York County NyArchives Court.....Mayor, Of  City Of New York Vs. Matthew Moore 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 8:52 am

Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant, v. 
MATTHEW H. MOORE, TIMOTHY DONOVAN and THOMAS McMANUS,  Respondents.

Notice to terminate a city contract — may be served by leaving it at the 
contractor's house.

In an action, brought upon a bond of the defendant Moore, upon which the 
defendants Dona van and McManus were sureties, for the faithful performance of a 
contract for the construction of a sewer in the city of New York, it appeared 
that the contract contained a provision that if the contractor should abandon 
the work, or if at any time the commissioner of public works should be of the 
opinion, and should so certify in writing, that the work, or any part thereof, 
was unnecessarily delayed, or that the contractor was willfully violating any of 
the conditions or covenants of his contract, or executing the same in bad faith, 
the commissioner should have the power "to notify the aforesaid contractor to 
discontinue all work, or any part thereof, under this contract, and thereupon 
the said contractor" should discontinue the work and the said commissioner 
should have the power to complete the work and charge the cost of the completion 
against moneys due, or thereafter to become due, to the said contractor.

Upon the trial evidence was offered by the plaintiff which tended to prove that 
a written notice of forfeiture of the contract had been left at the house of the 
defendant Moore with a woman of mature age, who answered the bell when the 
person having the notice to serve went to his house for that purpose.

Upon an appeal from a judgment, entered upon an order dismissing the complaint 
upon the ground that the plaintiff had not proved notice to the contractor to 
discontinue the work:

Held, that the judgment should be reversed.

That as it had been held, in the case of McCoy v. Mayor (46 Hun, 269), that the 
service of a notice by mailing the same in a post-paid envelope raised a 
presumption of service sufficient to present a question of fact upon which to go 
to the jury, the evidence in this case showed that all that could have been 
done, had the letter been deposited in the post-office, had been done, and that, 
therefore, the evidence of the service of the notice was as sufficient as if the 
same had been deposited in the post-office.

Appeal from a judgment, rendered in favor of the defendants upon a trial at the 
New York Circuit, dismissing the complaint as to all the defendants, which was 
entered in the office of the clerk of the city and county of New York on April 
19, 1888.

D. J. Dean, for the appellant.

L. Laflin Kellogg, for the respondents.

Van Brunt, P. J.:

This action was brought upon a bond conditioned for the faithful performance of 
a contract for the construction of a sewer in the city of New York. The 
defendant Moore, the contractor, is the principal of the bond and the defendants 
Donovan and McManus are the sureties.

The contract, for the faithful performance of which the bond was given, 
contained the following provisions: "The said party of the second part (meaning 
the contractor) further agrees that if the work under this agreement shall be 
abandoned, or if at any time the said commissioner shall be of the opinion, and 
shall so certify, in writing, that the said work, or any part thereof, is 
unnecessarily delayed, or that said contractor is willfully violating any of the 
conditions or covenants of this contract, or executing the same in bad faith, he 
shall have the power to notify the aforesaid contractor to discontinue all work, 
or any part thereof, under this contract, and thereupon the said contractor 
shall discontinue said work, or such part thereof, and the said commissioner 
shall have the power to complete the contract and charge the expense of the 
completion against such moneys as may be then due or may at any time thereafter 
grow due to the said contractor under and by virtue of this agreement, or any 
part thereof. And in case such expense shall exceed the sum which would have 
been payable under this contract if the same had been completed by said 
contractor, he shall pay the amount of such excess to the parties of the first 
part on notice from the said commissioner of the excess so due."

Upon the trial the complaint was dismissed upon the ground that the plaintiff 
had not proved notice to the contractor to discontinue the work. The evidence 
which the plaintiff offered on this point tended to prove that a written notice 
had been left at the house of the defendant Moore with a woman of mature age, 
who answered the bell, when the person having the notice to serve went to the 
house of Moore, the contractor, for that purpose.

The service of this notice seems to have been entirely ample under the case of 
McCoy v. The Mayor (46 Hun, 269). In that case it was held that the service of a 
notice by mailing the same in a post-paid envelope raised a presumption of 
service sufficient to raise a question of fact upon which to go to the jury. 
This presumption was based upon the principle settled in many well adjudicated 
cases, resting upon the fact that the postal service is a governmental agency 
adopted by the goverment and the people as a means of communication, and, 
therefore, a means of communication known to all; and, as the government is 
supposed to do its duty, it is presumed that a letter placed in the mail is 
properly sent and properly left at the place to which it was directed. The case 
at bar is sought to be distinguished from the one cited by the fact that the 
plaintiff has proved more than he would have been required to prove had the 
notice been served by mail. He has not limited his proof by evidence that a 
letter has been deposited in a mail box and then rested upon the presumption 
that the government officials have done their duty, but he has shown that the 
notice had been delivered to a person in the house occupied by the defendant, 
and that all has been done that could have been done had the letter been 
deposited in the post-office, and proof given that the government had done its 
duty instead of relying upon the presumption. Under these circumstances, 
therefore, the evidence of the service of the notice was clearly sufficient if a 
deposit in a post-office was sufficient; and it is a somewhat significant fact 
that, although the defendant was put upon the stand, yet he was not asked by his 
counsel whether he had received the notice or not. It was urged upon the 
argument that this is a circumstance to be taken as against the plaintiff. The 
plaintiff was not bound to ask this question and make the defendant its witness 
upon this point, giving him credit which he would not otherwise receive.

Objection upon this appeal has been taken to the sufficiency of the notice. 
There may be some question in that regard; but this question of the sufficiency 
of the notice does not seem to have been taken upon the trial below, and it is 
possible that had such an objection been taken, the service of the previous 
notice would also have been proved upon the part of the plaintiff. The sole 
question upon which the case seems to have been determined was that the proof of 
the service of the notice of the forfeiture of the contract was insufficient, no 
question being raised as to the form of the notice itself. In this we think the 
learned court below erred, and for that reason the judgment should be reversed 
and a new trial ordered, with costs to appellant to abide the event.

Brady and Daniels, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide the 
event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/newyork/court/mayor724gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 8.5 Kb